Native title year in review 2023-2024

What you need to know

• In Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 2) [2023] FCA 1060, the Federal Court was asked to remove limitations placed on a representative body's joinder to native title claim proceedings. 
• The Court clarified that native title representative bodies do not need to be joined as a party to proceedings to discharge their statutory duties and in fact joinder might place them in a position of conflict. 
• If they are joined as a party, they assume the obligation to discharge the same duties as any other litigant, in abiding by the usual standards of civil procedure. 

What you need to do 

• Native title representative bodies that are considering joining a native title claim proceeding should be clear about their functions and the parameters within which they must operate under the Native Title Act 1993 (Cth).
• The question they should ask themselves is whether their joinder would assist them to perform these functions.

History of the Representative Body's joinder status in the Marlinyu Ghoorlie native title claim

In 2020, Native Title Services Goldfields Limited (NTSG) made an application to join the Marlinyu Ghoorlie native title claim proceeding on the basis that its own interests may be affected by a determination.

NTSG had received requests for assistance to research and file native title applications that would overlap the Marlinyu Ghoorlie claim. NTSG argued it was conducting research into such claims and, if made a party, it could take part in the proceeding while doing so. Moreover, NTSG submitted that if native title was found to exist in the area, it would have obligations to perform its functions as the representative body. NTSG also submitted that accurately identifying native title holders was of direct relevance to it.

The Court ordered (by consent) that NTSG be joined as a respondent to the proceeding subject to two conditions. NTSG's active participation was limited to:

• issues relating to membership of the Marlinyu Ghoorlie claim group; and
• the extent of the Marlinyu Ghoorlie claim area within NTSG's native title representative body area.

The Marlinyu Ghoorlie claim and another overlapping claim were set down for hearing in October 2023. Shortly before the hearing commenced, NTSG filed an application to remove the limitations on its joinder which, it submitted, restricted its ability to fully participate in the proceeding.

In Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 2) [2023] FCA 1060, the Court determined to: 

• remove the geographic limitation from NTSG's participation in the proceeding; but
• otherwise dismiss NTSG's application, stating that to remove the issues limitation from NTSG's participation would only worsen an "already unsatisfactory state of affairs".

Notably, the role that NTSG wanted to play in the proceedings was not clear and it made several contradictory representations in its documentation. It also failed to clarify its position at the hearing of its application before the Court.    

What is the role of representative bodies in native title proceedings?

The Court said that the lack of clarity over NTSG’s interests and participation in the native title claim proceeding, was symptomatic of a broader issue concerning the proper role of representative bodies in native title proceedings.

In being joined and then petitioning to remove its limitations, NTSG had relied on the representative body's "facilitation and assistance functions" and additional functions (respectively in section 203BB and section 203BJ of the Native Title Act 1993 (Cth)). 

Broadly, these statutory functions include the representative body's role to identify persons who may hold native title in the area and assist people in lodging native title applications or participating in proceedings that relate to such applications.

However, these functions and powers are subject to various statutory limitations and conditions (largely contained in Division 3 of Part 11 of the Native Title Act).  The purpose of these limitations is to ensure that the representative body acts in relation to matters specifically requested of it, consults with the right people and has decision-making procedures in place to ensure fairness.

The Court noted that these statutory functions do not contemplate a representative body becoming a party to proceedings. It went on to acknowledge that the Native Title Act allows a representative body to become a party in the ordinary course: first, as of right within the notification period and secondly, if outside of the statutory notification period, then by an application to become a party if its interests may be affected by a determination and its joinder is in the interests of justice.

The Court held that in deciding to become a party to a native title proceeding, a representative body assumes the usual obligations of a litigant. This means that they must conduct the proceeding in accordance with the same principles that govern civil practice and procedure. 

The Court also noted the potential for a representative body to be placed into a position of conflict by reason of being a party to a native title proceeding.

The Court concluded by highlighting four matters:

• Joinder as a party to a proceeding is not a necessary step to be taken by a representative body.
• Joinder may or may not assist a representative body to perform its statutory functions.
• Joinder imposes the usual obligations of a litigant on the representative body.
• Joinder may place a representative body into a position of conflict with respect to the Aboriginal peoples or Torres Strait Islanders for whom it is a representative body.

Key Insights 

The Federal Court has made clear that there is no mandate on representative bodies to be parties to native title proceedings and in fact joinder might place them in a position of conflict.  

Representative Bodies that seek joinder should be clear on their statutory role (and limitations) and remember that they must comply with the usual obligations of litigants.  

Authors: Richard Anthonisz, Senior Associate; Jordan Soresi, Lawyer and Georgia Bertolini, Graduate.